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On Sunday, May 29, the Texas legislature passed SB 100. It leaves the date of the primary in March, but moves the runoff primary from April to the fourth Tuesday in May. Because the current law says independent candidate petitions (for office other than President) are due 30 days after the runoff primary, this moves the independent candidate petition deadline from May to June. In 2012 the petition deadline will be June 24.

Oddly, though, the independent presidential petition deadline will be May 14, because the code section governing that deadline is in a separate place and it not tied to the date of any primary or runoff primary. Assuming the bill is signed into law, it will be very likely that an independent presidential candidate will win a lawsuit against the May 14 deadline. There is no state interest in requiring an independent presidential candidate to submit a petition forty days before the petition for other independent candidates. Even without this discriminatory aspect, the presidential deadline is so early that it appears to violate the U.S. Supreme Court decision Anderson v Celebrezze.

SB 100 also moves the deadline for non-presidential candidates to file a declaration of candidacy from early January of the election year, to the second Monday in December of the odd year before the election year. That deadline applies to independent candidates, minor party candidates, and major party candidates. No other state has anything remotely similar, as applied to independent candidates. The whole point of having procedures for independent candidates is to give voters an alternative if the primaries produce unsatisfactory nominees. But the filing requirement makes the emergence of a new candidate legally impossible.

6 Responses

The December filing deadline is for primary candidates. The declaration of candidacy for independent candidates is tied to the same date. The filing deadline for convention candidates is set in a separate section, and remains January 2.

The point of independent nominations is to provide an alternative for those who don’t wish to participate in the nomination activities of a political party. Voters who support an independent candidate can forgo participation in the primary (eg “save yourself for Kinky”)

Given the earlier shift in the presidential calendar, It is not clear that the Supreme Court would rule in the same manner as Anderson v Celebrezze which was a 5-4 decision. The main cited precedent from the decision, is that district court and appeals judges get to look at each case as new issue, and write a long opinion that can be reviewed if they are ever nominated for a Supreme Court vacancy.

The presidential calendar is not fundamentally different in 2012 than it was in 1980. Ronald Reagan had the Republican nomination sewed up after the March 1980 presidential primaries, and Jimmy Carter had clearly defeated Teddy Kennedy after the April primaries. By contrast, in 2008, the Democratic race between Obama and Hillary Clinton.

Where is that Model Election Law ??? — having ALL dates connected to the General Election DAY.

Separate is NOT equal — regardless of ALL MORON SCOTUS ballot access cases since 1968 — with their arbitrary and vague stuff about deadline dates for whatever — i.e. how and when independents and minor parties get on ballots.

Ohio had a June primary in 1980. Ohio has a March primary in 2012. Anderson would have had to file his lawsuit in January 1980 to be at the same relative point in the calendar.

See the 1980 election calendar on frontloading.org, where it calls the 1980 calendar a classically backloaded calendar with the overwhelming majority of primaries after May, and the most frequent date in June.

When ralph Nader sued Arizona in 2004 over its June petition deadline for independent candidates, the US District Court upheld the June deadline and said that Anderson v Celebrezze doesn’t mean a June deadline is unconstitutional, because the 2004 presidential primaries were so much earlier than the 19980 presidential primaries. But the 9th circuit disagreed with that conclusion. So it is still true that no court of final jurisdiction has ever upheld a June petition deadline for presidential independent candidates. The 7th circuit refused injunctive relief in 2004 against Illinois’ June petition deadline, but there was no ruling on the constitutionality, and one reason for denial of injunctive relief was that Nader had filed the lawsuit too late.